Citation Nr: 9916291
Decision Date: 06/14/99 Archive Date: 06/21/99
DOCKET NO. 93-15 543 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to assignment of an increased rating for post-
traumatic stress disorder (PTSD), currently evaluated as 30
percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant, L.L.
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1969 to
January 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1990 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York, which granted service connection for
post-traumatic stress disorder (PTSD) and assigned a 10
percent disability rating. In November 1990, a notice of
disagreement was received. In March 1991, the RO increased
the veteran's rating to 30 percent. A statement of the case
was issued in September 1992. A substantive appeal was
received in October 1992. Since the increase to 30 percent
did not constitute a full grant of the benefit sought, the
increased rating issue remained in appellate status. AB v.
Brown, 6 Vet. App. 35, 39 (1993). The Board remanded the
claim for additional development, and in subsequent rating
decisions the RO declined to grant an evaluation in excess of
30 percent.
The veteran's representative has raised the issue of
entitlement to a total disability rating for compensation
based on individual unemployability (TDIU). This claim was
initially denied in March 1991 and does not appear to have
been appealed. In supplemental statements of the case, dated
in July 1997 and July 1998, the RO again denied entitlement
to TDIU. As this claim does not appear to be in appellate
status, it is referred to the RO for appropriate action.
FINDINGS OF FACT
1. The veteran was discharged from service in January 1972;
his claim for entitlement to service connection for PTSD was
received on February 13, 1990.
2. The positive and negative evidence is in a state of
equipoise on the question of whether the veteran's PTSD
rendered him demonstrably unable to obtain or retain
employment as of February 13, 1990.
CONCLUSION OF LAW
The criteria for a 100 percent evaluation for the veteran's
PTSD as of February 13, 1990, have been met. 38 U.S.C.A. §§
1155, 5107(b) (West 1991); 38 C.F.R. § 4.132, Diagnostic Code
9411 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran is appealing the original assignment of a
disability evaluation following an award of service
connection, and, as such, the claim for the increased
evaluation is well-grounded. 38 U.S.C.A. § 5107(a); Shipwash
v. Brown, 8 Vet. App. 218, 224 (1995). Moreover, in such a
case it is not the present level of disability which is of
primary importance, but rather the entire period is to be
considered to ensure that consideration is given to the
possibility of staged ratings; that is, separate ratings for
separate periods of time based on the facts found. Fenderson
v. West, 12 Vet. App. 119, 126 (1999). After reviewing the
evidence, which includes various VA and non-VA outpatient and
examination reports, the Board is satisfied that all relevant
evidence necessary for an equitable disposition of the
veteran's appeal has been obtained and that no further
assistance is required to comply with the duty to assist him
mandated by 38 U.S.C.A. § 5107(a).
The veteran's service records show that he served in the
Republic of Vietnam from July 1970 to May 1971 with Marine
infantry units as a rifleman and a squad leader, and that he
participated in the Combined Unit Pacification Program. His
awards include the Combat Action Ribbon.
The veteran asserts that his PTSD is more than 30 percent
disabling. Specifically, the transcript from a hearing in
March 1998 at the RO shows that the veteran testified that
his PTSD symptomatology was so severe that he had not be able
to maintain employment, or have a meaningful relationship
with a woman, since 1990. He further asserted that he had
difficulty concentrating, flashbacks and outbursts of anger
and violence. An acquaintance of the veteran stated that he
had witnessed two of the veteran's violent rages in the
previous two months.
VA outpatient records, dated between 1990 and 1998, show that
the veteran has
received ongoing treatment for PTSD. A November 1990 report
contains a Global Assessment of Functioning (GAF) score of
50, with a high of 70 for the year. A January 1998 report
includes a GAF score of 45, with a high of 55 for the year.
VA hospital reports, dated between 1990 and 1997, show that
the veteran has been hospitalized at least nine times with
diagnoses that typically included PTSD and alcohol
dependence. An August 1990 report notes that the veteran has
a history of several suicide attempts. A March 1997 report
is remarkable for a GAF score of 40.
The claims file also includes several VA examination reports,
dated between August 1990 and October 1998, which show that
the veteran has consistently been diagnosed with PTSD. Some
of these reports also contain diagnoses of alcohol dependence
and substance abuse. Reports dated in August 1995 and
October 1998 show GAF scores of 45, and an October 1996
report contains a GAF score of 51. The October 1996 report
is remarkable for diagnoses of PTSD and dysthymia, and the
fact that the examiner stated that the veteran's dysthymia
symptoms could not be separated from his PTSD symptoms. In
an attachment to this report, another examiner commented that
the veteran's Minnesota Multiphasic Personality Inventory
(MMPI) scores were suggestive of dysthymia, rigidity and
social withdrawal. The examiner stated that, "It is
exceedingly unlikely that there will be any lasting
appreciable improvement."
Also included in the claims file are records from the Social
Security Administration (SSA) showing that in about February
1992 the veteran was determined to be disabled as of October
6, 1990. His primary diagnosis was alcohol dependence, and
his secondary diagnosis was PTSD. The SSA's supporting
medical evidence consists of a psychiatric review and some of
the VA medical records previously described.
In its rating decision of March 1991, the RO assigned the 30
percent rating for the veteran's PTSD under 38 C.F.R.
§ 4.132, Diagnostic Code (DC) 9411, applying the criteria in
effect prior to November 7, 1996. Under such criteria, a 30
percent rating for PTSD was warranted when there was definite
impairment in the ability to establish or maintain effective
and wholesome relationships with people and the
psychoneurotic symptoms resulted in such reduction in
initiative, flexibility, efficiency and reliability levels as
to produce definite industrial impairment.
The next higher rating of 50 percent was warranted when the
ability to establish or maintain effective or favorable
relationships with people is considerably impaired and, by
reason of psychoneurotic symptoms, the reliability,
flexibility and efficiency levels were so reduced as to
result in considerable industrial impairment. A 70 percent
evaluation was warranted when the ability to establish and
maintain effective or favorable relationships with people are
severely impaired, and the psychoneurotic symptoms are of
such severity and persistence that there is severe impairment
in the ability to obtain or retain employment.
A 100 percent rating for PTSD was warranted where the
attitudes of all contacts except the most intimate were so
adversely affected as to result in virtual isolation in the
community; or there were totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities such as fantasy,
confusion, panic, and explosions of aggressive energy
resulting in profound retreat from mature behavior; or there
was a demonstrable inability to obtain or retain employment.
38 C.F.R. § 4.132. The criteria set forth in 38 C.F.R.
§ 4.132, DC 9411, for a 100 percent evaluation each offer
independent bases for granting a 100 percent evaluation. See
Johnson v. Brown, 7 Vet. App. 95, 97 (1994).
After reviewing the totality of the evidence, the Board
concludes that a 100 percent evaluation is warranted for the
veteran's PTSD under the rating criteria as in effect prior
to November 7, 1996. Specifically, the Board finds that
there has been a demonstrable inability to obtain or retain
employment since February 13, 1990. The evidence, dated
between 1990 and 1998, includes a VA hospital report, dated
in March 1990, which shows that the veteran was admitted for
diagnoses that included PTSD on February 5, 1990. The
veteran has continuously received psychiatric and
psychopharmacological treatment for his PTSD since that time,
including at least eight additional hospitalizations. His
GAF scores have primarily been between 41 and 50, which
suggest serious symptoms or serious impairment in social,
occupational or school functioning. See Quick Reference to
the Diagnostic Criteria from DSM IV 47 (American Psychiatric
Association 1994). The medical records also show continuous
notations of severe symptoms which have included flashbacks,
nightmares and depression.
Significantly, the medical records indicate that the veteran
has not worked since he lost his job at a VA medical center
in 1990. In this regard, a letter from the veteran's former
supervisor, dated in January 1991, indicates that the
veteran's employment was terminated, in part, due to a lack
of dependability reportedly related to his PTSD. In a May
1991 letter, a VA PTSD nurse/therapist essentially stated
that the veteran's severe PTSD symptomatology affected his
employment.
The Board's conclusion is further supported by the fact that
VA psychological testing performed in October 1996 and
September 1997 indicates that the veteran had severe PTSD
symptomatology.
Although there is also evidence which shows that the veteran
has a long-standing history of alcohol and drug abuse
reportedly dating back to his service, that he may have a
personality disorder, and that there is mixed evidence as to
whether the veteran is currently using alcohol, the Board
finds no clear medical evidence which could serve as a basis
for distinguishing the effects of any drug abuse, alcohol
abuse or personality disorder from the veteran's PTSD.
Furthermore, even though there is no opinion which
definitively addresses the matter, a January 1997 outpatient
report appears to link the veteran's drinking to his PTSD.
Under the circumstances, the Board finds no basis to
dissociate the effects of any alcohol abuse, drug abuse, or
personality disorder from the impairment due to PTSD. In
such cases, where the inability to work may be caused by
nonservice-connected and service-connected disability, the
benefit-of-the-doubt doctrine is for consideration. See
Martin v. Brown, 4 Vet. App. 136, 140 (1993).
Accordingly, the Board finds that the pertinent evidence is
in a state of equipoise as to the question of whether one of
the independent bases for assigning a 100 percent rating
under the 1996 rating criteria has been established. Under
such circumstances, the benefit of the doubt is awarded to
the veteran. 38 U.S.C.A. § 5107(b). The Board further finds
that the evidence is also in relative equipoise as to when
the veteran became demonstrably unable to obtain or retain
employment. As previously stated, the veteran was admitted
to a VA hospital on February 5, 1990 for diagnoses that
included PTSD. Although this report indicates that he was
thought to be employable, it is clear that he has received
on-going treatment for severe PTSD symptoms, and that he has
not worked since that time. Given the fact that the
veteran's claim was received by the VA on February 13, 1990,
and with reasonable doubt resolved in the veteran's favor,
the record shows that he has met the criteria for a 100
percent rating since the receipt of his claim. See 38 C.F.R.
§ 3.400(b)(2)(i); Fenderson, supra, 126-127.
ORDER
Entitlement to a 100 percent evaluation for the veteran's
service-connected post-traumatic stress disorder effective
from February 13, 1990, is warranted. The appeal is granted
to this extent subject to legal criteria governing the
payment of monetary benefits.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals